Monday, February 27, 2006

Three emergency situations

IN 2002 NATIONAL SECURITY ADVISER ROILO Golez set alarm bells ringing when he came out of a Malacañang conference, announcing that President Macapagal-Arroyo was ready to declare a state of emergency in General Santos. The announcement conjured up visions of arbitrary arrests and indefinite detention. Then, as now, we had not yet recovered from the martial law trauma. Hence the alarm bells had to be doused immediately. Golez himself clarified that a state of emergency is a "generic term" which enables the government to choose from a menu of options.

Last Friday, when Malacañang first hinted at a possible declaration of a national state of emergency, alarm bells erupted. It again conjured up visions of arbitrary arrests and indefinite detention. And a glib Malacañang spokesperson did not help to assuage fears. Neither did the excessive zeal of some minions of the law. The excessive zeal only continues to threaten public safety.

What is a state of emergency all about and what additional powers, if any, does it give the executive arm?

There are in the Constitution three situations in which government is called upon to deal with emergency; but in none of the texts is emergency defined. In fact, in the most severe of these situations, dealt with by Article VII, Section 18, the word emergency is not even mentioned. It is simply described.

Article VII, Section 18 speaks of "lawless violence, invasion or rebellion" which challenge "public safety." These are situations which threaten law and order and national security. They are situations which call for immediate action. Clearly they are emergency situations. And it is the President who is authorized to make the initial assessment whether these situations exist. Moreover, having verified their existence, she is authorized by the Constitution to deal with them through a platter of graduated powers.

The most important is the power to impose martial law which broadens the police power of the President. Less in severity is the power to suspend the privilege of the writ of habeas corpus which authorizes the executive to limit physical liberty. The mildest is the power to call on the Armed Forces to come to the aid of the police in the prevention or suppression of lawless violence or rebellion. It is this last which President Arroyo used when she issued Proclamation 1017. And to all appearances, her minions are reading it as a declaration of war.

Does calling on the Armed Forces give the President additional executive powers? In substance, no; but it does give her more vigor in the enforcement of law and order which is her daily duty anyway. In the exercise of her law enforcement power, she can make use of all the legal instruments available for law enforcement and within the limits prescribed by the Constitution. Calling on the Armed Forces does not authorize her to cross constitutional demarcation lines. But the danger of abuse is significantly enhanced. Now the iron fist is more and more showing behind the mask.

Another provision on emergency is Article VI, Section 23(2) which says: "In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy."

Here, war is certainly considered a national emergency situation but it is not the only emergency situation envisioned. The provision also covers emergency situations mentioned by Article VII, Section 18 as well as situations created by epidemics, typhoons, earthquakes or other natural calamities. But Congress must first agree that a national emergency exists, and the extent and the duration of the powers conferred on the President are determined by Congress.

The third emergency situation is found in Article XII, Section 17 which says: "In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest."

In trying to understand this provision, which among other things leaves "national emergency" undefined, it is important to recall its provenance. It was born during the martial law regime. You don't find a similar provision in the 1935 Constitution. Moreover, the only time it was used was during martial law. In fact, this provision got into the 1973 Constitution, inspired by Marcos' Letter of Instruction (LOI) No. 2, dated 22 September 1972. This LOI instructed the Secretary of National Defense to take over "the management, control and operation of the Manila Electric Company, the Philippine Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways ... for the successful prosecution by the Government of its effort to contain, solve and end the present national emergency." It was done in the exercise of martial law powers and it was among the executive acts which the Constitutional Convention wanted ratified through Section 3(2), Article XVII of the 1973 Constitution.

In my view, therefore, Article XII, Section 17 embodies a martial law power of the President. It is noteworthy, however, that in referring to Article XII, Section 17, Ms Arroyo, in 1017, simply used it as a springboard for declaring a national state of emergency; she did not attempt to exercise the power embodied in the provision. In fact, she omitted citing the power that the provision embodies. But it is a veiled threat which PNP chief Arturo Lomibao has unveiled.